QUESTION: The Gemara asks whether a person includes his Sefer Torah when he
says that he is selling or giving away his "property" ("Nechasim"). On one
hand, it is forbidden to sale a Sefer Torah, and therefore perhaps it is not
included in a sale of one's "property." On the other hand, since it is
permissible to sell a Sefer Torah in order to have funds to learn Torah and
to get married, perhaps it is included in a sale of one's "property." The
Gemara leaves this question unanswered and concludes with "Teiku."

The BACH emends the Girsa and omits the two sides of the question (while
leaving the question itself). Indeed, this is the text of the Gemara
according to all of the manuscripts of the Gemara as the DIKDUKEI SOFRIM
points out, and it seems that most of the Rishonim, too, do not have the two
sides of the question in their text of the Gemara.

According to that Girsa, what is the question of the Gemara? Why should a
Sefer Torah not be included in the rest of a person's "Nechasim?"

ANSWERS:

(a) TOSFOS answers that even though a Sefer Torah is acquired in the manner
of all other objects, nevertheless since it is prohibited to sell a Sefer
Torah (except for the reasons mentioned in the Gemara in Megilah 27a), a
Sefer Torah cannot be called a "possession" like all other possessions which
one may sell as he pleases. The CHASAM SOFER (Teshuvos CM 143) explains that
even though we also find limitations on selling Tefilin, Tefilin
nevertheless are included in "Nechasim" because they are also called a
"Malbush" (an article of clothing) and it follows that it is included in
"Nechasim" since articles of clothing are called "Nechasim." A Sefer Torah,
however, which has no uses similar to other items that one owns and is not
able to be sold, perhaps is not called "Nechasim."

(b) The NIMUKEI YOSEF explains that the reason a Sefer Torah is not called
"Nechasim" is because it is so important. The term "Nechasim" refers to
one's ordinary, mundane possessions, and thus it is not appropriate for such
a term to include a Sefer Torah. The CHASAM SOFER (ibid.) suggests that this
is also the opinion of the RASHBA who adds that the same question applies if
one gives away his "Metaltelin" (movable objects).

The Chasam Sofer says that this a practical difference between the
explanation of Tosfos and that of the Nimukei Yosef. According to Tosfos, a
Sefer Torah certainly is included in the term "Metaltelin," since it is
movable. The doubt of the Gemara applies only with regard to the term
"Nechasim," which refers to possessions of monetary value. According to the
Nimukei Yosef, the doubt of the Gemara applies even for the term
"Metaltelin," because a Sefer Torah is not included in regular expressions
of belongings, as it is more important. The NODA B'YEHUDAH (Teshuvos CM 43)
remarks that this is also the opinion of the RASHBAM (however, according to
the Chasam Sofer's explanation of Tosfos, the Rashbam might also understand
the Gemara like Tosfos).

HALACHAH: The SHULCAN ARUCH (CM 248:11) says that since the Gemara leaves
this question unresolved, out of doubt a Sefer Torah is *not* included when
one gives away his "Nechasim." If, however, the recipient of the gift seizes
the Sefer Torah as well, then we do not take it away from him (see BI'UR
HA'GRA). The ARUCH HA'SHULCHAN says that a Sefer Torah *is* included in
"Metaltelin." This is unlike the Rashba cited by the Chasam Sofer who says
that this term is also included in the doubt of the Gemara. (Y. Montrose)

2) THE GIFT OF THE MOTHER OF RAV AMRAM CHASIDA

QUESTION: The Gemara relates that Rav Amram Chasida's mother had many
documents attesting to various loans that were owed to her. On her deathbed,
she proclaimed that they should all be given to Rav Amram as a gift. After
her death, Rav Amram's brothers came before Rav Nachman and protested his
ownership of the debts on the grounds that he never made a proper act of
Kinyan on the documents. Rav Nachman upheld Rav Amram's ownership based on
the principle of "Divrei Shechiv Mera k'Chesuvin uche'Mesurin Dami" -- "the
words of a Shechiv Mera are as if they are written and given over."

The Acharonim ask why did Rav Nachman need to give this reason for his
ruling? The Halachah follows the view of Rebbi Yochanan ben Berokah (130a)
who states that one is allowed to transfer an inheritance to a specific
individual who is otherwise fit to inherit him without having to use the
special law of "Divrei Shechiv Mera." Why, then, did Rav Nachman not base
his ruling on Rebbi Yochanan ben Berokah's principle in order to uphold Rav
Amram's inheritance?

ANSWERS:

(a) The KOVETZ SHI'URIM explains that Rebbi Yochanan ben Berokah's ruling
applies only to an inheritance being bequeathed by a father and not to an
inheritance being bequeathed by a mother. This is based on the verse which
Rebbi Yochanan ben Berokah cites as his source, which states, "And it shall
be on the day that *he* bequeaths to *his* sons that which *he* has..."
(Devarim 21:16), which is conjugated in the masculine form.

However, he says that this approach is difficult, because Rebbi Yochanan ben
Berokah's principle, which he learns from this verse, applies to all
potential heirs, even though the context of the verse is dealing only with a
firstborn son.

(b) The AYELES HA'SHACHAR explains that there is a complex question
regarding whether Rebbi Yochanan ben Berokah's principle applies to property
which is considered a "Davar she'Lo Ba l'Olam" or not (according to the
opinion, which is the Halachah, that a normal Kinyan cannot be made on a
"Davar she'Lo Ba l'Olam"). Perhaps one cannot use Rebbi Yochanan ben
Berokah's principle to bequeath an object that has not yet come into the
world (or into the possession of the benefactor), since his principle is
merely a mechanism whereby a normal Kinyan can be made on an object that
otherwise one would not be permitted to transfer ownership of that item.
Consequently, according to the opinion which maintains that one may not sell
a loan document according to the Torah because it is deemed a "Davar she'Lo
Ba l'Olam," the transfer of ownership of a loan document to one's heir is
*not* a valid transaction according to Torah law. Even with regard to
whether it works mid'Rabanan, there might be a doubt whether the Rabanan
permitted such a form of transfer of ownership (a "gift-inheritance") for a
"Davar she'Lo Ba l'Olam." Therefore, Rav Nachman based his ruling,
permitting Rav Amram to keep the loan documents that his mother gave to him
before she died, on the obvious and indisputable principle of "Divrei
Shechiv Mera" and not on the questionable application of Rebbi Yochanan ben
Berokah's principle. (Y. Montrose)